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How can a human being disappear?

On the 30th of August the United Nations observes the International Day of the Victims of Enforced Disappearances. Emmanuel Decaux (President of the UN Committee on Enforced Disappearances) and Olivier de Frouville (Chair and Rapporteur of the Working Group on Enforced or Involuntary Disappearances (WGEID)) have taken the time to consider a few questions with us in recognition of this important observance day, which was established by the UNGA (resolution 65/209, para. 4).

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

How can a human being ‘disappear’? What does this term represent?

Emmanuel Decaux: There is a big difference between a “missing person” and an enforced disappearance, with a secret detention of a person and a denial of his whereabouts. The legal definition of enforced disappearance implies an imputability to the State, which can act directly by its agents (such as the police or armed forces), but also indirectly, by giving its authorization, support, or acquiescence to non-State actors (such as paramilitary groups or clandestine forces). When private actors are responsible and the State is not involved, neither directly nor indirectly, its duty is to find the disappeared person and to prosecute the perpetrators. However, in this case we are referring to a crime of “droit commun” (common law) and not a crime of the State. The Convention of 2006 takes a step further in calling on States to investigate acts committed by persons or groups of persons acting without its authorization, support, or acquiescence and to bring those responsible to justice. But the main responsibility is the responsibility of States, by action or by omission.

Olivier de Frouville: Enforced disappearance is a technique of terror. Victims of disappearances do not disappear willingly or by accident. They are the victims of a crime, consisting in the deprivation of their liberty, and the subsequent denial of that deprivation of liberty or the refusal to provide any information about the fate or the whereabouts of the disappeared person, thus placing this person outside the protection of the law. Enforced disappearances are part of counter-subversive strategies used by some intelligence services and security personnel, together with torture and summary executions. Typically, a number of persons are arrested, in an effort to obtain information and dismantle illegal groups or simply to terrorize the civilian population and obtain obedience.

Many people associate the term ‘disappeared’ (Desaparecidos) with the crimes carried out by Pinochet’s regime. Is this the origin of the term?

Emmanuel Decaux: The phenomenon was not new but its systematic use was a characteristic of military regimes in Latin America. They established between them a secret transborder cooperation with the Condor plan. It explains the concern of Latin American countries, with both a regional instrument and also a leading role in the UN system. But we have to say that every country ought to be concerned by enforced disappearance, not only due to military dictatorships or civil wars, but also in democracies, as we’ve seen in the reports of the APCE on the network of secret detentions of the CIA and the case law of the European Court on Human Rights. The legal nature of the Convention could be a motivation for all States to take preventive measures, looking to the future rather than only at the past, and to fully cooperate with others States in an international framework.

Olivier de Frouville: If you read the Nacht und Nebel Decree signed by Keitel in 1941, you will find an exact description of what enforced disappearances are. This is a codification of the practice, condemned as a crime against humanity and a crime of war by the International Military Tribunal in Nuremberg:

“The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality and terror. On 7 December 1941 Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (Night and Fog Decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial or punishment in Germany. This decree was signed by the Defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases where they died awaiting trial, the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.”

Hitler’s purpose in issuing this decree was stated by the Defendant Keitel in a covering letter, dated 12 December 1941:

“Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. The aim is achieved when the criminal is transferred to Germany.” (Nuremberg Judgement, IMT Serie, vol. I, 232-233)

Other interesting analysis of the NN Decree is included in the Justice Case (4 December 1947, TWC, vol. III, 1057-1058). The practice seems to have been revived during the colonial wars in an effort to find new techniques to dismantle illegal armed groups and their cells. It was then exported to Latin America, and then used extensively in the context of the Condor plan. Afterwards, it spread all over the world.

How can international law make a difference?

Emmanuel Decaux: The elements of the crime of enforced disappearance are already violations of international human rights law, as a breach of such basic rights as to the right to life, the prohibition of torture, the “right to recognition everywhere as a person before the law,” the due process of justice, etc. There is a strong case law of the Human Rights Committee and of regional Courts, such as the European Court of Human Rights or the Inter-American Court of Human Rights, in this field. But the “complex phenomenon” of enforced disappearance was not dealt as such in its systematic nature.

The new trend of international law is to stick to the core element and to create a new human right, the right to not being subjected to enforced disappearance and to organise the international cooperation in matters of prevention, protection, prosecution, and reparation. The first step was the creation of the WGEID in 1980 and the adoption of the Declaration on the protection of all persons from enforced disappearance by the GA in 1992. Another important step was the qualification of enforced disappearance as a crime against humanity by the Rome Statute. The latest development was the adoption in 2006 of a new treaty, the Convention on the protection of all persons from enforced disappearance, which entered into effect on 23 December 2010, after the twentieth ratification. As of today, there are 40 State Parties and the Committee on enforced disappearances (members were elected in May 2011) is fully functioning with 10 independent experts from all regions of the world.

The Convention is at the crossroads of international human rights law and of criminal law. As other treaty-bodies, its main functions are to examine the reports submitted by States parties on the implementation of the Convention and to consider individual communications. But it can also receive and consider urgent actions, undertake country visits, and bring reports of widespread or systematic practise of enforced disappearance to the attention of the UN General Assembly. The Convention qualifies enforced disappearance as a crime and requires States parties to adapt their domestic legislation in order to incriminate enforced disappearance as such, as an autonomous crime. Furthermore it underlines that the widespread or systematic practice of enforced disappearance qualifies as a “crime against humanity” according to the rules of international law. The Convention is also very important to prevent enforced disappearance, with legislative and administrative measures strengthening the rule of law, in order to forbid secret detention and to create accountability. Its last field is the rights of victims, taking into account vulnerable groups, such as children. All these legal obligations taken together constitute a strong framework to fight against impunity and to promote justice.

The Convention created an important momentum and the first goal is to trigger universal ratification and effective implementation. The Committee is the watchdog of the Convention but its broad mandate is to cooperate with other international bodies, such as the Human Rights Committee or the WGEID, and with the International Red Cross Committee (IRCC) and NGOs. The Committee has close links with the WGEID and the International Day is a special occasion for us to pay tribute to the victims and to the struggle of civil society across the world.

Olivier de Frouville: At the time when the Mothers of the Plaza de Mayo in Argentina were challenging the military dictatorship and calling the international community to help them in their quest for truth and justice, enforced disappearances were not well identified as such. Identifying the phenomenon and giving it a legal definition, as well as defining the legal obligations of States, was really the first essential and necessary step towards an effective action against this scourge. The WGEID played a major role to this regard, as it analysed the phenomenon on the basis of the communications and cases it received, and tried both to come up with a legal definition and with a satisfactory legal regime, dealing with all aspects of the problem.

Enforced disappearance is a complex crime and almost all fields of law are affected. It is important to create an autonomous crime of enforced disappearance in the penal code, to submit this crime to universal jurisdiction, but also to provide for integral reparation to the victims, as well as with a strong national mechanism aiming at clarifying the fate or the whereabouts of the victims. Civil status issues are also at stake, as the disappearance of persons leaves pending a whole range of matters, like marriage, inheritance, or guardianship. The disappearance and appropriation of children also create difficult problems. Identification of stolen children can lead to the restitution of their true identity, sometimes against their own will. In many cases, international cooperation is needed, due to the transnational nature of the practice. For instance, in the framework of Condor, citizens from Uruguay or Chile were abducted in Argentina through joint operations undertaken by the intelligence services of both countries, and then taken to Montevideo to be tortured and executed. Unfortunately, this pattern was used again in the context of post 9/11 “war on terror”: the “extraordinary renditions” program is strikingly similar to what happened in Latin America in the past.

What issues is the United Nations Working Group on Enforced and Involuntary Disappearances focused on currently?

Olivier de Frouville: The WGEID did a fantastic job in its first years. If you read the first reports, all the main issues are well-identified. During its 30 years of existence, the WGEID explored those issues on the basis of the communications, allegations, and testimonies it received from families of victims, NGOs, and States. It drafted a number of studies but also, from 1993, “general comments” aiming at interpreting the 1992 Declaration for the Protection of All Persons Against Enforced Disappearances. These general comments can be found on the WGEID’s website.

What we are doing now is revisiting a number of issues in the light of new facts and situations, but also in the light of the evolution of international law. For instance, the idea that there is a right to the truth of the families of the disappeared was asserted in the very first report of the WGEID in 1981. But now it has become an emerging right in international law and it applies not only to enforced disappearances but also to other serious human rights violations. There has been major developments in this field, which led us to adopt a General comment on this issue. Now, there are many new challenges arising and touching upon a broad range of issues. We have recently adopted two new General comments, one on Women facing enforced disappearances (as disappeared persons, as family members, and as being often at the forefront of the fight against enforced disappearances), and another on children (as disappeared and appropriated children, but also as family members). We dedicated our last annual report to new trends in the field of reparation. And we are currently starting a study on the consequences of enforced disappearances on economic, social and cultural rights. Other issues we would like to look at in the coming years are the use of forensic analysis (particularly DNA tests in the search of the disappeared), the prevention of enforced disappearances (particularly the role of habeas corpus), and enforced disappearances during armed conflicts. Strangely, international criminal law recognizes enforced disappearance as a crime against humanity, but not as a crime of war. Of course, we also continue to try to improve our methods of work. Our main task is to provide assistance to the families of the disappeared: we aim at being as efficient as possible in fulfilling this task.

What issues is the Committee on Enforced Disappearances (CED) focused on currently?

Emmanuel Decaux: The CED began its work two years ago with a broad mandate. First it had to adopt the rules of procedure and a lot of legal niceties (guidelines on submission of reports, individual communications, and urgent actions), with translation in an user-friendly manner, in order to liaise with civil society and other stakeholders.

Since its fourth session, the CED started to carry out constructive dialogues with State parties in the context of the consideration of their reports. The first reports to be considered were those of Uruguay and France. Argentina and Spain will follow in November. The remaining reports will be considered by the CED as they are submitted by the other States parties. Germany, the Netherlands, and Belgium have already submitted their reports and they are scheduled to be considered in 2014. The common methodology of consideration of reports includes the preparation of a list of issues followed by an interactive dialogue with the State party concerned and the issuance of concluding observations, containing recommendations on how to meet the obligations stemming from the Convention. This process is carried out with great openness and transparency, including by the acceptance of alternative reports from civil society actors. The examination of reports by the CED is public and webcasted. There is a lot to do in order to timely consider the reports of the 40 States Parties, but it is essential to have this sort of “check-up” within two years after the ratification by any state.

Our second task is to be ready to answer to the communications or information from NGOs dealing with specific issues, such as urgent actions and allegations of serious violations which could lead to a country visit. We have already dealt with some cases related to Mexico, for example, as indicated in our report to the GA. However, it is important to highlight that before conducting a country visit, the Committee endeavors to engage with the State party concerned. We need a greater awareness and on-ground advocacy from the civil society to trigger the mechanisms of the Convention.

The CED is eager to cooperate with States to obtain a full respect of their legal duties and to apply a convention which is victim-oriented. But the first step is accountability, with compliance by States parties with their conventional responsibility of submitting a report on the measures taken to give effect to their obligations under the Convention. We hope that the first steps taken by the CED in a very professional and dedicated manner, will encourage all UN Members States to ratify the Convention as soon as possible as a preventive tool, a sort of “life assurance”.

What do you hope to see in terms of truth, justice, and reparation to victims of enforced disappearances in the coming years?

Olivier de Frouville: Enforced disappearances are not a fatality. This is a technique of terror, which is being taught to intelligence and security officers and allowed to be used by governments in “exceptional circumstances” in a number of situations across the world. We need to make those people understand that, as the Declaration says, no circumstances whatsoever may justify enforced disappearances. Enforced disappearance is torture. It is now widely accepted that there is an absolute jus cogens prohibition of enforced disappearances and a correlative absolute right not to be subjected to enforced disappearances.

The consequence is that enforced disappearance is a serious crime in international law, with all the consequences flowing from it in terms of international responsibility of the State, but also in terms of international responsibility of individual perpetrators. States and individuals must be held accountable. This is the reason why we continue to insist that investigations are undertaken and that perpetrators are punished, but also that the State should take measures to provide for reparations to victims, not only through compensation, but also through rehabilitation and satisfaction. Acknowledgement of the responsibility of the State, rehabilitation of the memory of the disappeared is particularly important.

Huge challenges also remain ahead as far as the right to the truth is concerned. Finding the truth about the fate of disappeared persons implies exhumation and identification of sometimes thousands of victims. This is a very complicated long-term and costly task, especially for developing countries. We need to think more of how to help countries in transition and who are willing to undertake this task but who do not have financial means and technical capacities. What was done by the international community in Bosnia-Herzegovina may serve as example. Even though we are still far from the end of the road in this country, great progresses have been made and a methodology has been defined that could be replicated in other countries.

Finally, we are very much concerned by the situation of those who fight against enforced disappearances on the field: families of victims, sometimes very simple people, human rights defenders, NGOs. Almost every week we receive calls for urgent actions because these peoples are subjected to threats, intimidation, or reprisals. They work in difficult conditions; they are often accused of defending “criminals”. It is hard for a mother who asks for the truth about her son, who has been abducted by the police or the military in front of many witnesses, to be answered: “Your son is a criminal, he fled and is now fighting with the guerrillas.” The fact is that the criminals are those who abducted her son. Another problem we see, especially due to the current times of financial crisis, is that those courageous peoples who are mobilizing themselves against enforced disappearances in their countries are lacking funds. It is more and more difficult to find financial support for what is often perceived by donors as a “politicized” issue, whereas other issues may seem less problematic. This is an absolute shame. There is a responsibility of all donors to strongly support those courageous people who are only asking for justice, truth, and reparation and who are taking all the risks on behalf of all of us.

Emmanuel Decaux is professor of public international law at the University Paris II as well as director of the Center for Human rights and humanitarian law (CRDH). He published extensively on Human Rights International Law. Since 2002, he was member of the Sub-Commision on Human Rights and, subsequently, member of the HRC Advisory Committee. He was elected member of the Committee on enforced disappearances in 2011 and is currently serving as chairperson. Olivier de Frouville is a Professor of Public Law at the University of Paris 2 (Panthéon-Assas), ad interim Director of the Thucydide Center and Deputy Director the Center of Research on Human Rights and Humanitarian Law (CRDH). He is also a member of the Institut Universitaire de France (IUF).